Terms and Conditions

Our Terms and Conditions of Service

Digital Marketing Services 

Professional Standard

The Search Engineers will provide the services identified in the Statement of Work or Services Agreement.

The Search Engineers will provide these services in a professional manner and in accordance with applicable professional standards.

Engagement

The Client may engage The Search Engineers to carry out a Service by:

• signing and returning a Statement of Work; or

• signing and returning a Services Agreement; or

• in the case of smaller engagements by written verification.

Unless The Search Engineers notify The Client otherwise, The Search Engineers will accept that engagement, subject to these Terms and Conditions. The Service will commence in line with the Service Schedule or when The Search Engineers accept the engagement.

Services

The Services that The Search Engineers provide to The Client and any specific terms, may include some or all of the following:

• Business Strategy;

• User Experience Design;

• User Experience Research;

• Search Engine Marketing

• Search Engine Optimisation (SEO);

• Search Engine Advertising (Pay Per Click PPC Advertising);

• Analytics

Hours of Service

All Services will be carried out between 9:00 am and 5:00 pm (local office time), Monday to Friday excluding public holidays and the Christmas / New Year closure periods.

Search Engine Marketing

Search Engine Marketing Services may include:

• Keyword research & Keyword Recommendations

• SEO Report

• Website Audit / On Page SEO Report

• Copywriting & Content Generation

• Creation / Management of Google Analytics 

• Creation / Management of Google Ads 

• Creation / Management of Google Search Console 

• Creation / Management of Google Business Profile

• Creation / Management of Google Tag Manager

• Management of Conversion Tracking Code

• Evaluation of Backlink strategy and advice

Search Engine Marketing Services exclude:

• Implementation of SEO recommendations

• Implementation of advanced conversion tracking (remove code) where website development is needed

• Broken Links cleanup & ongoing maintenance

• Landing Page Creation or Website Development

• Implementation of Conversion Tracking Code

• Website Maintenance & Security Updates

• New Website Migration

• Tuition or training

Change Requests and Additional Costs

Change Requests

A "Change Request" is any request for work outside the scope of the Statement of Work/Services Agreement.

If such a request is made, The Search Engineers will notify the Client that it is a Change Request. If the Client still wants to proceed with the Change Request, The Search Engineers will provide a price estimate to the Client. Upon approval of the Change request scope and price, The Search Engineers will incorporate the work into the schedule. The Client understands that the project completion schedule may be affected depending on the size or volume of Change Requests.

Examples of change requests include:

• introduction of additional requirements not discussed during the onboarding process

• additional Service management time;

• unplanned delays in obtaining approval, Client Content or feedback resulting in The Search Engineers having to reschedule services, staff or facilitate continuance;

• overtime required to meet deadlines due to delays by the Client providing approval, Client Content or feedback;

The Search Engineers include service management time in all quotes, but from time to time The Search Engineers are required to not only manage The Search Engineers team but also manage The Client’s team. This is generally not known at the time of quoting and may be treated as a change request.

Additional Costs

If during the course of the engagement there are small changes in the Service, The Search Engineers will contact The Client and provide an estimate of the Additional Costs for these small changes.

Where possible, The Search Engineers will attempt to obtain approval from The Client prior to undertaking the additional work. However, in some cases due to deadline and availability constraints, this may not be possible and The Search Engineers may proceed with the work without obtaining approval.

Additional Costs will be invoiced separately to the Client on an ad hoc basis, charged at current Professional Hourly Rates.

Examples of Additional Costs include:

• content not in the appropriate format;

• extra workshops or workshops requiring additional hours;

• requested additional design concepts / alterations;

• additional meetings

Client Approval

Client approval and implementation will be required for a number of items (Approval & Implementation Item) presented to The Client:

• Statement of Work

• Services Agreement

  any other item for which The Search Engineers request The Client’s approval.

When The Search Engineers provide The Client with any Approval Item, The Client must notify us in writing whether they do or do not accept the completed Approval Item.

The Client will be deemed to have accepted the Approval Item if The Search Engineers do not receive a response from The Client.

The Client’s acceptance of the completed Approval Item means that the Approval Item is complete and no further amendments are necessary. However, The Search Engineers will not proceed to the next Stage of the Service until The Search Engineers receive approval to proceed.

The Client shall retain sole and exclusive responsibility for the content, suitability and appropriateness of all advertisements provided or approved by them for distribution or publication. The Client represents and warrants that they have conducted and will continue to conduct, all necessary due diligence to ensure that such advertisements are suitable and compliant with all applicable regulations, standards and best practices relevant to The Client’s business industry. The Search Engineers shall not be held responsible or liable for any legal implications, liabilities, claims or damages that may arise as a result of any legal issues pertaining to the advertisement.

Payment

The Search Engineers will invoice the Client according to the Statement of Work/Services Agreement

Taxes

The client is responsible for paying all applicable taxes.

Late Payment

In the event of late payment, The Search Engineers reserves the right to (a) suspend services until full payment has been made and (b) require the Client to pre-pay for any future services.

Delivery

Timeframe 

The Search Engineers will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work/Services Agreement. The Search Engineers's delivery time frame depends upon the Client's prompt response to any questions, requests for Client materials and general cooperation throughout the process.

The Search Engineers Consultants 

The Search Engineers may hire third-party analysts, design, marketing or technology specialists or service providers ("Consultants") as independent contractors to provide the services described herein. The Search Engineers are responsible for the Consultants' compliance with this Agreement. Any new Consultants may be subject to passing probity checks by the Client before they can start work for the Client.

Testing & Acceptance 

The Search Engineers shall use commercially reasonable effort to test Deliverables before providing them to the Client.

The Client shall promptly review all Deliverables and notify The Search Engineers of any failure to conform to the Statement of Work/Services Agreement within 5 business days of receipt. If The Search Engineers do not receive a timely notification, the Deliverable will be deemed accepted. The Client's notice must clearly identify the problems with the Deliverable.

Client Responsibilities 

The client must promptly: (a) coordinate any decision-making activities with 3rd parties; (b) provide Client Data in a form suitable for reproduction or incorporation into the Deliverables; and (c) proof read the Deliverables. The Search Engineers may outline additional client responsibilities via the Statement of Work/Services Agreement document(s) created for projects.

Rights in Deliverables: The Client

IP Assignment 

Upon Client acceptance of all Final Deliverables, The Search Engineers shall assign IP rights in the Final Deliverables to the Client when relating invoices are paid in full. These IP rights include all ownership rights, including any copyrights, in any software, analysis and presentation created by The Search Engineers and incorporated into a Final Deliverable, except as otherwise noted in this Agreement.

Rights in Deliverables: The Search Engineers

The Search Engineers IP 

Client acknowledges that the methodologies, strategies, designs, templates, software (and any modifications thereto), pre-existing IP of The Search Engineers (and any changes thereto), general knowledge, skills, experience, ideas, concepts, know-how and techniques used by The Search Engineers in the course of performing services hereunder are all part of The Search Engineers's proprietary IP and are owned exclusively by The Search Engineers.

Open Source

Upon written permission by the Client, The Search Engineers may publish non-confidential components of Final Deliverables under an open-source license on The Search Engineers's website and other public avenues for the promotion of The Search Engineers.

Project Disclosure

The Search Engineers may publicly describe its role in the Project upon written permission from the client.

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The Search Engineers and Client Relationship

Non-Exclusive 

This Agreement does not create an exclusive relationship. The Deliverables are not a "work for hire" under Copyright Law.

No Assignment 

Except as set forth herein, neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any such attempted assignment will be void ab initio. Consent is not required to disposition substantially all assets of the assigning party's business.

Confidential Information

Each party shall maintain Confidential Information in strict confidence and shall not use Confidential Information except (a) as necessary to perform its obligations under the Agreement or (b) as required by a court or governmental authority. Confidential Information includes proprietary technical and business information and any other information marked "Confidential."

Security

The Search Engineers will use commercially appropriate measures, including establishing and maintaining policies, procedures and technical, physical and administrative safeguards, to ensure the security and confidentiality of Confidential Information. The Search Engineers will protect the security or integrity of Confidential Information against any reasonably foreseeable threats or hazards.

Exception

Confidential Information does not include (a) any information that is in the public domain, (b) becomes publicly known through no fault of the receiving party or (c) is otherwise known by the receiving party before obtaining access to it under this Agreement or adequately received from a third party without an obligation of confidentiality.

No Solicitation

Non-Solicit

During the term of this Agreement and for 12 months after its expiration, Client shall not solicit any of The Search Engineers's Employees or Consultants (collectively, "The Search Engineers Employee") and The Search Engineers shall not solicit any of Client’s employees or agents. "Solicit" is defined to include: interviewing, recruiting, engaging or otherwise employing or retaining on a full-time, part-time, consulting, work-for-hire or any other basis.

Agency Commission

In the event of such Solicitation, the solicitation party shall pay the other party an agency commission of 50% of the employee's annual starting salary or, if hired as a contractor, 50% of the total contract fees paid to an employee during the first year following the Solicitation.

Termination

Discretionary Termination by Client

IF: Client uses this discretionary termination provision, THEN: The Search Engineers will retain all payments already made as of the notification date. Client shall pay The Search Engineers (a) for all approved expenses incurred as of the date of notification of termination and (b) for any hours worked but not yet invoiced at the hourly rate defined in the Statement of Work/Services Agreement.

Discretionary Termination by The Search Engineers

IF: The Search Engineers uses this discretionary termination provision, THEN: (a) The Search Engineers will retain (or, if not paid in advance, will be due) all costs already incurred and a prorated portion of the fees for services performed up to the termination date and (b) The Search Engineers will assign sufficient IP rights to Client to allow Client to continue the project.

Termination for Bankruptcy

Subject to any restrictions imposed by law, either party may immediately terminate this Agreement if the other party either: (1) ceases to do business in the normal course; (2) becomes insolvent; (3) admits in writing its inability to meet its debts or other obligations as they become due; (4) makes a general assignment for the benefit of creditors; (5) has a receiver appointed for its business or assets; (6) files a voluntary petition for protection under the bankruptcy laws; (7) becomes the subject of an involuntary petition under the bankruptcy laws that is not dismissed within 60 days.

Termination for Breach

If a material breach of this Agreement is not cured within 10 business days after a party's receiving written notice of the breach, then the non-breaching party may terminate this Agreement immediately upon notice.

Termination Procedure

Upon expiration or termination of this Agreement: (a) each party shall return (or, at the disclosing party's request, destroy) the Confidential Information of the other party and (b) other than as expressly provided in this Agreement, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

Risk Allocation

Client Representations

Client represents and warrants to The Search Engineers that: Client shall comply with all laws and regulations governing the services and Deliverables.

The Search Engineers Representations

The Search Engineers represents and warrants to Client that:

• For any Final Deliverable that includes the work of independent contractors or third-party material, The Search Engineers shall secure sufficient rights for the Client to use the Final Deliverables for their intended purpose.

• To the best of The Search Engineers's knowledge, the final Deliverables will not infringe upon the IP rights of any third party.

Limitation of Liability

The services and the work product of The Search Engineers, are sold "as is." 

Regardless of the situation, The Search Engineers will not be held responsible for any loss of data, content or profits, nor shall it be liable for disruptions to business. 

Furthermore, The Search Engineers cannot take responsibility for any sort of indirect, incidental, special, consequential, exemplary or punitive damages related to materials and services provided by them - even when alerted that such damages may arise.

Limited Warranty

Except for the express representations and warranties stated in this agreement, The Search Engineers makes no warranties whatsoever. The Search Engineers explicitly disclaims any other warranties, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.

Force Majeure

Either party may invoke Force Majeure to excuse the failure of its timely performance if such failure was caused by: fire; flood; hurricane, tornado or other severe storms; earthquake; the act of war; sabotage; terrorism; riot; interruption or failure of electrical or telecommunications service (for example, Internet failures); or failure of suppliers, subcontractors and carriers to substantially meet their performance obligations.

Failure to make payment may only be considered a Force Majeure event if caused by an interruption in a third-party payment system that otherwise qualifies as a Force Majeure event.

A party invoking force majeure to excuse its failure of timely performance must show that the force-majeure event(s) and their relevant effects (i) were beyond the invoking party's reasonable control and (ii) could not have been avoided through the exercise of due care by the invoking party.

Indemnification

Applicability

This indemnification clause governs all obligations arising under this Agreement (if any) that require a party (the "Indemnifying Party") to defend an individual or organization (a "Protected Person") against a claim, for example, a claim made by a third party.

Indemnification

IF: A third party claims that, if finally successful, would establish a breach of a representation or warranty of this Agreement; THEN: The party who made the representation or warranty will: (i) defend the Protected Person against the claim (as defined below) and (ii) indemnify each Protected Person against any monetary award entered on the claim (as defined below).

Indemnification Against Damage Awards

The Indemnifying Party will indemnify the Protected Person against all monetary awards resulting from a final judgment or award from which no further appeal is taken or possible. Such monetary awards include, for example, damages, penalties, interest and attorneys-fee awards.

General Terms

Notices

All notices shall be sent by email. Permissible addresses for notice include those stated in this Agreement and any other address reasonably communicated.

A notice that is sent by e-mail, but is not read by the addressee is nevertheless effective if, but only if, it has been (a) sent from an email account that has been designated for notice and (b) delivered to an email account that has been designated for notice. Email accounts designated for notice are identified at the top of this Agreement and may be amended only by written notice.

Dispute Resolution

Early Neutral Evaluation

At the request of either party, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to nonbinding early neutral evaluation, in Queensland, in accordance with the Early Neutral Evaluation procedures of the Australian Disputes Centre.

Arbitration 

At the request of either party, the parties will submit any dispute between them arising out of or relating to this Agreement or any transaction or relationship arising from it, to binding arbitration in Brisbane, through the Australian Disputes Centre. The prevailing party in any dispute resolved by arbitration or litigation will be entitled to recover its costs and attorneys' fees.

Jurisdiction 

The parties irrevocably consent to the jurisdiction of the state and federal courts located in Brisbane. The parties hereby waive any jurisdictional or venue defenses and consent to the service of process by certified mail.

Interpretation

Governing Law - This Agreement will be governed by the laws of the Commonwealth of Australia without regard to its conflict or choice of law rules.

Analytics Terminology - Any analytics terminology in the Statement of Work/Services Agreement is defined according to standard analytics industry usage. Any dispute as to the meaning or scope of analytics terminology will be determined in good faith by The Search Engineers.

IF / THEN Construction - The use of capitalized "IF:" and "THEN:" in a sentence is intended only to enhance readability. It has no special meaning apart from its lowercase meaning.

Modification & Waiver - Any modification of this Agreement must be in writing.

Severability - If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.

Mutual Drafting - Any ambiguity or inconsistency in this Agreement is to be resolved in accordance with the most reasonable construction and not strictly for or against either party by virtue of that party's authorship.

Headings - Section headings are provided for convenience only and do not affect the meaning of any terms.

Integration - This Agreement comprises the parties' entire understanding and supersedes all prior agreements and understandings.

Definitions

Client Data - all data provided by the Client for use in the preparation of and/or incorporation into the Deliverables.

Deliverables - the services and work product specified in the Statement of Work/Services Agreement to be delivered by The Search Engineers to the Client, in the form and media specified in the Scope of Work.

Final Deliverables - the final versions of Deliverables provided by The Search Engineers and accepted by the Client, including templates and processes for feature prioritization, data outputs (e.g. reports and dashboards), UX research reports and other pieces of work agreed from time to time between the parties in writing.